Freeman v. Meijer, Inc., Docket No. 78-5183

• Decision Date: 20 February 1980
• Docket Number: Docket No. 78-5183
• Citation: 291 N.W.2d 87,95 Mich.App. 475
• Parties: Beatrice H. FREEMAN and Kimberly Freeman, by Beatrice H. Freeman, her next friend, Plaintiffs-Appellants, v. MEIJER, INC., Defendant-Appellee. 95 Mich.App. 475, 291 N.W.2d 87
• Court: Court of Appeal of Michigan — District of US

Page 87

291 N.W.2d 87

Beatrice H. FREEMAN and Kimberly Freeman, by Beatrice H Freeman, her next friend, Plaintiffs-Appellants, v. MEIJER, INC., Defendant-Appellee.

Docket No. 78-5183.

95 Mich.App. 475, 291 N.W.2d 87

Court of Appeals of Michigan.

Feb. 20, 1980.

Released for Publication April 30, 1980.

[95 MICHAPP 476] Shirley J. Burgoyne, Ann Arbor, for plaintiffs-appellants.

[95 MICHAPP 477] Altero J. Alteri, Farmington Hills, for defendant-appellee.

Before T. M. BURNS, P. J., and J. H. GILLIS and BASHARA, JJ.

BASHARA, Judge.

Plaintiffs, Beatrice and Kimberly Freeman, appeal by leave granted from a decision of the circuit court affirming a district court verdict of no cause of action in favor of defendant, Meijer, Incorporated. Plaintiffs' action for unlawful arrest, false imprisonment and assault and battery resulted when plaintiffs were arrested by defendant's employees as they attempted to depart from defendant's self-service store.

Defendant's employees, being private citizens, have the power to arrest only when a felony has been committed. M.C.L. § 764.16; M.S.A. § 28.875. Larceny in a building is a felony. M.C.L. § 750.360; M.S.A. § 28.592.

Plaintiffs sought a directed verdict on the grounds that there was insufficient evidence to support a finding of larceny in a building. They contended that no criminal acts had been performed or, alternatively, that the evidence only established a misdemeanor of attempted larceny. M.C.L. § 750.92; M.S.A. § 28.287. The trial judge denied the motion. When charging the jury, the court instructed that they could only find for defendant if it was determined that larceny in a building had been committed. The jury returned a verdict of no cause of action. Plaintiffs' motion for a judgment notwithstanding the verdict was denied.

Plaintiffs first contend that the trial judge erred in denying their motions for a directed verdict and judgment notwithstanding the verdict. This requires us to determine if there was sufficient evidence, when viewed in a light most favorable to [95 MICHAPP 478] defendant, to support a finding of larceny in a building.

The record reveals that on June 5, 1973, plaintiffs, mother and daughter, were shopping at defendant's store. They stopped to try on some nylon jackets. Mrs. Freeman was observed by a security guard removing a price tag from one of the jackets and dropping it on the floor. The jackets were then placed in a shopping cart and taken to another department. The plaintiffs donned the jackets a second time and were seen rubbing the collars of the jackets on the back of their necks. Plaintiffs became aware of surveillance by store security personnel and again moved to another department where they left the jackets. A third jacket was taken to the check-out counter, but was not purchased after the cashier called for a price check on the jacket. When plaintiffs attempted to leave the store, they were arrested by store security personnel.

The essential elements of larceny in a building were set forth in People v. Wilbourne, 44 Mich.App. 376, 378, 205 N.W.2d 250, 251-252 (1973), as follows:

"(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or the personal property of another, (5) the taking must be without the consent and against the will of the owner, * * * (and) (6) the taking must be done within the confines of the building."

The elements of asportation and felonious intent are disputed in the present case. In a self-service store, the mere taking up of goods in the sales area does not constitute asportation with felonious intent. Durphy v. United States, 235 A.2d 326 (D.C.App.1967).[95 MICHAPP 479] There must be some conduct by the customer which makes his possession clearly adverse to the store. Id. An asportation with criminal intent may be found where goods have been concealed. People v. Bradovich, 305 Mich. 329, 9 N.W.2d 560 (1943). Plaintiffs argue that larceny in a building in a self-service store cannot occur without concealment. We disagree.

Concealment is merely one way of expressing criminal intent. As soon as criminal intent is present, the slightest movement of goods within a self-service store constitutes asportation and the crime is complete. A later abandonment of the attempt to remove the goods from the store is no defense. People v. Williams, 63 Mich.App. 531, 234 N.W.2d 689 (1975).

We find that the acts of removing the price tags from the jackets and attempting to soil the jackets provide sufficient evidence to find a felonious intent. Thereafter, the movement of the goods provided the asportation which completed the crime of larceny in a building.

Plaintiffs next contend that a directed verdict should have been granted because defendant was bound by statements contained in its pleadings, interrogatories and pretrial statements, that it had arrested plaintiffs for attempted larceny, a misdemeanor.

Plaintiffs rely on GCR 1963, 604, incorporated into the District Court Rules by DCR 601, which provides:

"Any statement of fact set forth in any pleading shall be treated as an admission by the pleader and need not be proved by the opposite party."

We find plaintiffs' reliance on GCR 604 is misplaced[95 MICHAPP 480] because the court rule refers only to admissions of fact. Whether a series of acts amounts to larceny in a building or attempted larceny is a...